Guest Shot: New policies are needed to halt unjust convictions

by Katherine Ramsland

This opinion originally appeared in the Philadelphia Inquirer on Nov. 4, 2007.

Katherine Ramsland teaches forensic psychology at DeSales University

When the U.S. Supreme Court mandated the Miranda warning in 1966, it did so to protect the public against coerced self-incrimination. But some law-enforcement agencies resisted. They said that articulating those rights hampered their ability to get confessions and released more criminals on technicalities. In other words, if an arresting officer forgot the warning or failed to notice that the subject was not competent enough to waive protected rights, the case could be tossed.

Now we are seeing a host of new policy changes on the horizon. These changes will help minimize false convictions. And again, we see resistance from the very people who should care most about justice for all. It is almost as if the law-enforcement establishment believes it is more important to convict and then let the system sort it out. But those who believe this have not fully grasped the harm some current procedures have perpetrated on the innocent. Law enforcement should welcome - not reject - changes designed to protect.

The main problem is that many innocent people have been convicted. The number we know of is very large, and - given the problems discovered with formerly accepted legal procedures and certain types of evidence - it stands to reason that many more innocents are serving time or possibly have been executed.

Proposed changes in courts around the country directly address this issue. They include: improved procedures for the identification of suspects, including expanded use of DNA technologies; improved efforts to corroborate information given by informants or "snitches"; and higher standards for crime labs. Some long-enshrined procedures are now being reviewed with a newly critical eye. For example, research in psychology for more than a century has proven repeatedly that eyewitness testimony (a leading factor in false convictions) is fallible. Finally, officials are listening.

And yet there is still resistance in many law-enforcement circles.

Here are some sobering statistics from the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University. Since 1989, this group has freed 208 men via postconviction DNA analysis on biological samples from their supposed crimes. Fifteen were on death row, facing execution for something they did not do. The average length of time served was 12 years, with many in prison for more than two decades. The total number of known years served by the innocent is a staggering 2,563. And these are just the statistics for the small percentage of cases in which biological evidence was involved (and testable), and for which the overburdened personnel at the Innocence Project had time. They currently have tens of thousands of letters in their files from inmates begging for help.

Here's just one example of how the system broke down. In Texas, Roy Criner received a prison term in 1990 of 99 years for the rape and killing of a teenage girl. Later, he submitted to DNA testing, and the results excluded him as the rapist. The Texas Court of Appeals, however, ruled this evidence would have made no difference to the conviction, so he remained in prison.

Then a local reporter found more evidence of Criner's innocence. A cigarette butt, previously discounted, was tested for DNA. The test result proved that the person who had smoked it had been the rapist-murderer - and that this person was not Criner. After serving 10 years for a crime he did not commit, he finally was set free.

"It breaks you down." Those are the words of one exonerated convict in the documentary movie After Innocence. It features cases such as that of Nick Yarris, who spent 22 years on Pennsylvania's death row for murder. Even after he was freed, he could not persuade the prosecutor to send the DNA profile that had exonerated him to a national database to assist in identifying the real killer.

It is almost as if law enforcement does not want to identify and exonerate the innocent. Eight states do not yet mandate giving inmates postconviction access to DNA analysis. Five states defeated bills intended to change policies on eyewitness identification. The California State Sheriff's Association opposes bills that require officials to record interrogations and corroborate informant information; the purported fear is that such procedures would create loopholes for defense attorneys to exploit. This organization also opposes new procedures for suspect lineups. Research has revealed that witnesses, when asked to pick from lineups, make comparisons among those lined up, which can alter their memory. Or they may simply choose the one who "looks" criminal. (The recent study by the Chicago police department that "proved" that current methods worked just fine was significantly flawed.)

Even if the system releases the innocent, it sometimes seems to wish to punish them somehow anyway. The conviction records of many exonerated individuals are not expunged, making it difficult for them to find employment and even a place to live. Their most productive work years are lost, and they can expect little or no assistance with integration back into the community. A few have received payouts from successful lawsuits, but most have nothing. Some say it was easier for them in prison.

It seems that some of our sworn protectors would rather protect themselves. Why else would they resist policy changes arising from verified harm? These system failures ought to disappoint law-enforcement personnel, as they did Gov. George Ryan in Illinois. Upon learning that 13 men on Illinois' death row had been exonerated, Ryan commuted the sentences of all death-row inmates because he recognized that changes were needed.

The English jurist William Blackstone famously said: "Better that 10 guilty persons escape than that one innocent suffer." Apparently that's literary fluff to some people. They should talk to exonerated convicts. Of course, we should expect collateral damage within any human institution, but if we have identified ways to reduce it, we should utilize them. It is shocking that officials entrusted with public safety would worry more about technical slip-ups that might free a guilty person than about errors that repeatedly have victimized the innocent.

Guest Shot: America’s Police Brutality Pandemic

by Paul Craig Roberts
This opinion was originally published on September 26, 2007 at http://www.lewrockwell.com/roberts/roberts224.html

Bush’s "war on terror" quickly became Bush’s war on Iraqi civilians. So far over one million Iraqi civilians have lost their lives because of Bush’s invasion, and four million have been displaced. Iraq’s infrastructure is in ruins. Disease is rampart. Normal life has disappeared.

Self-righteous Americans justify these monstrous crimes as necessary to ensure their own safety from terrorist attack. Yet, Americans are in far greater danger from their own police forces than they are from foreign terrorists. Ironically, Bush’s "war on terror" has made Americans less safe at home by diminishing US civil liberty and turning an epidemic of US police brutality into a pandemic.

The only terrorist most Americans will ever encounter is a policeman with a badge, nightstick, mace and Taser. A Google search for "police brutality videos" turns up 2,210,000 entries. Some entries are foreign and some are probably duplications, but the number is so large that a person could do nothing but watch police brutality videos for the rest of his life. A search on "You Tube" alone turned up 2,280 police brutality videos. PrisonPlanet has a selection of the most outrageous recent cases.

Police brutality has crossed the line from using excessive force against a resisting Rodney King to unprovoked gratuitous violence against persons offering no resistance, such as the elderly, women, students, and elected officials. Americans are not safe anywhere from police. Police attack Americans in university libraries, in public meetings, and in their own homes.

Last week we had the case of the University of Florida student who was repeatedly Tasered without cause for asking Senator Kerry some good questions in the question and answer period following Kerry’s speech. Two days after the Florida student was gratuitously brutalized, Senate Republicans defeated Vermont Democrat Patrick Leahy’s bill to restore habeas corpus protection.

A UCLA student was Tasered by police without cause for studying in the university library without having his student ID on his person. Following police orders to leave, the student was walking toward the door when police grabbed him and repeatedly Tasered him.

On September 19, 2007 a young woman was repeatedly Tasered without cause by a large brutal cop in a parking lot outside a night club in Warren Ohio.

On September 14, 2007, Roseland, Indiana, city council member David Snyder was ejected from a council meeting by dictatorial council chairman Charlie Shields. Snyder had protested being limited to one minute to speak. Police goon Jack Tiller escorted Snyder out, and as Snyder exited the building, Tiller, following behind, pushed Snyder to the ground and without cause began beating Snyder in the head with a nightstick. Snyder was hospitalized.

Local TV news stations throughout the US offer an endless stream of police brutality videos, which are then posted on the stations’ web sites, often with an opportunity for citizens to express their opinion of the incidents.

There are many disturbing aspects to police brutality cases.

One disturbing aspect is that the police always arrest the people that they have gratuitously brutalized. There was no justification whatsoever to arrest councilman Snyder, or the UCLA student, or the University of Florida student. The cops committed assault against innocent citizens. The cops should have been arrested for their criminal acts. Instead, the cops cover up their own crimes by arresting their victims on false charges that are invented to justify the unprovoked police violence against citizens.

Another disturbing aspect is that no one tells the police to stop the brutality. "Free" Americans are so intimidated by police that on February 19 of this year male customers in a Chicago bar stood aside while a drunk cop weighing 251 pounds beat a 115 pound barmaid, knocking her to the floor with his fists and repeatedly kicking her, for obeying the bar rules and not serving him more drinks.

Yet another disturbing aspect is that a minority of citizens will justify each act of police brutality no matter how brutal and how unprovoked. For example, WNDU.com’s poll of its viewers found that 64.2% agreed that Snyder was a victim of police brutality, but 27.8% thought that Snyder got what was coming to him. "Law and order conservatives" and other authoritarian personalities invariably defend acts of police brutality. Perhaps the police brutality pandemic will bring the day when we will be able to say that a civil libertarian is a law and order conservative who has been brutalized by police.

The most disturbing aspect is that the police usually get away with it.

I remember decades ago when civil libertarians in New York City tried to stop police brutality by establishing civilian review boards to introduce some accountability into the police’s interaction with civilians. Law and order conservatives at William F. Buckley’s National Review went berserk. Accountability was "second-guessing" the police. The result would be a crime wave. And so on.

Police forces have always attracted bullies with authoritative personalities who desire to beat senseless anyone who does not quake in their presence. In the past police could get away with brutalizing blacks but not whites. Today white citizens are as likely as racial minorities to be victims of police brutality.

The police are supreme. The militarization of the police, armed now with military weapons and trained to view the general public as the enemy, against whom "pain compliance" must be used, has placed every American at risk of personal injury and false arrest from our "public protectors."

In "free and democratic America," citizens are in such great danger from police that there are websites devoted to police brutality with online forms to report the brutality.

Nine years ago Human Rights Watch published a report entitled, "Shielded from Justice: Police Brutality and Accountability in the United States." The report stated:

"Police abuse remains one of the most serious and divisive human rights violations in the United States. The excessive use of force by police officers, including unjustified shootings, severe beatings, fatal chokings, and rough treatment, persists because overwhelming barriers to accountability make it possible for officers who commit human rights violations to escape due punishment and often to repeat their offenses. Police or public officials greet each new report of brutality with denials or explain that the act was an aberration, while the administrative and criminal systems that should deter these abuses by holding officers accountable instead virtually guarantee them impunity.

"This report examines common obstacles to accountability for police abuse in fourteen large cities representing most regions of the nation. The cities examined are: Atlanta, Boston, Chicago, Detroit, Indianapolis, Los Angeles, Minneapolis, New Orleans, New York, Philadelphia, Portland, Providence, San Francisco, and Washington, D.C. Research for this report was conducted over two and a half years, from late 1995 through early 1998."

The brutality cases examined, which are set out in detail in chapters on each city, are similar to cases that continue to emerge in headlines and in survivors' complaints. It is important to note, however, that because it is difficult to obtain case information except where there is public scandal and/or prosecution, this report relies heavily on cases that have reached public attention; disciplinary action and criminal prosecution are even less common than the cases set out below would suggest.

There is no way to hold police accountable when the president and vice president of the United States, the attorney general, and the Republican Party maintain that the civil liberties and the separation of powers mandated by the US Constitution must be abandoned in order that the executive branch can keep Americans safe from terrorists.

Even before the "war on terror," federal police murdered 100 people in the Branch Davidian compound at Waco, and no one was held accountable.

Who is a terrorist? If the police and the US government have the mentality of airport security, they cannot tell a terrorist from an 86-year old Marine general on his way to give a speech at West Point. Retired Marine Corps General Joseph J. Foss was delayed and nearly had his Medal of Honor confiscated. Airport security regarded the pin on the metal as a weapon that the 86-year old Marine general and former governor of South Dakota could use to hijack an airliner and commit a terrorist deed.

In America today, every citizen is a potential terrorist in the eyes of the authorities. Airport security makes this clear every minute of every day, as do the FBI and NSA with warrantless spying on our emails, postal mail, telephone calls, and every possible invasion of our privacy. We are all recipients of abuse of our constitutional rights whether or not we suffer beatings, Taserings, and false arrests.

The law makes it impossible for Americans to defend themselves from police brutality. Law and order conservatives have made it a felony with a long prison sentence to "assault a police officer." Assaulting a police officer means that if a police thug intends to beat your brains out with his nightstick and you disarm your assailant, you have "assaulted a police officer." If you are not shot on the spot by his backup, you will be convicted by a "law and order" jury and sent to prison.

No matter how gratuitous and violent the police brutality, a "free" American citizen can defend himself only at the expense, if not of his life, of a long stay in prison. Osama bin Laden must wish that he had such power over Americans.

Paul Craig Roberts [send him mail] wrote the Kemp-Roth bill and was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is author or coauthor of eight books, including The Supply-Side Revolution (Harvard University Press). He has held numerous academic appointments, including the William E. Simon Chair in Political Economy, Center for Strategic and International Studies, Georgetown University and Senior Research Fellow, Hoover Institution, Stanford University. He has contributed to numerous scholarly journals and testified before Congress on 30 occasions. He has been awarded the U.S. Treasury's Meritorious Service Award and the French Legion of Honor. He was a reviewer for the Journal of Political Economy under editor Robert Mundell. He is the co-author of The Tyranny of Good Intentions. He is also coauthor with Karen Araujo of Chile: Dos Visiones – La Era Allende-Pinochet (Santiago: Universidad Andres Bello, 2000).

The presumption of innocence / Do keep it in mind

Editorial reposted from the Press of Atlantic City (NJ)on Octobery 18, 2007
http://www.pressofatlanticcity.com/opinion/editorials/story/7510151p-7408348c.html

THE PRESUMPTION OF INNOCENCE

Do keep it in mind

Innocent until proven guilty.

It's an important concept. America's system of justice hinges on it. And it doesn't just protect creeps. It protects you, too. It hasn't done much for Terry Oleson, though.

Oleson lived at the Golden Key Motel in West Atlantic City, doing odd jobs for rent, when the bodies of four prostitutes were found in the marshes near the motel in November.

Officials with the Atlantic County Prosecutor's Office never named Oleson a suspect in the murders. But he was questioned in connection with the murders. And Atlantic County investigators searched his Alloway Township home. He also submitted DNA samples to investigators. There's nothing wrong with any of that - it's how investigations work.

But it was enough to put Oleson at the center of a media firestorm that made him guilty in the eyes of many. And it helped keep him in the Salem County jail for more than six months.

It didn't help that Oleson is not likely to ever be named the Chamber of Commerce's man of the year. He was arrested in April by Salem County officials and charged with videotaping an underage girl naked without her knowledge. But he was jailed on $100,000 full cash bail - which is higher than usual for that charge.

Again, Oleson's no angel. But those six months in the Salem County jail had something to do with the West Atlantic City murders, even if no one wants to acknowledge that inconvenient fact. Finally, last week, Oleson pleaded guilty to the videotaping charge; a judge lowered his bail to $25,000; his family posted a 10-percent bond, and Oleson was released pending a Nov. 27 sentencing.

On Friday, he plans to hold a press conference at his lawyer's office. One person who plans to attend is an Atlantic City prostitute who was sure that Oleson was a customer named "Eldridge," who told her he had hurt some women. The prostitute was certain about that - until she saw Eldridge again in Atlantic City, while Oleson was still in jail. Now she wants to apologize.

We can't quite bring ourselves to say that the Atlantic County Prosecutor's Office or the news media owe Oleson an apology. The prosecutor and the media were just doing their jobs.

But it is a good time to note that truth is difficult, that things are not always what they seem. And that's why people are tried in the courts, not the "court" of public opinion, which is really no court at all.

And to those who will say that we are naive, that we do not know what authorities know about Oleson, that this editorial will come back to haunt us: Fine. Just prove it. Until then, Terry Oleson is, regarding the West Atlantic City murders, an innocent man.

Arthur Thomas Updates

We have two updates regarding the execution of Arthur Thomas. The first is a press release from Alabama Governor Bob Riley.

OFFICE OF GOVERNOR BOB RILEY

FOR IMMEDIATE RELEASE: SEPTEMBER 27, 2007


Governor Riley Issues 45-Day Stay of Execution

MONTGOMERY – Governor Bob Riley granted a brief stay of execution to Thomas Arthur, a death row inmate who was scheduled to die by lethal injection at 6 p.m. Thursday.

The Governor made the decision to grant a stay of 45 days and met with Commissioner Richard Allen of the Alabama Department of Corrections on Thursday morning.

“The evidence is overwhelming that Thomas Arthur is guilty and he will be executed for his crime. The decision to grant a brief stay is being made only because the state is changing its lethal injection protocol, and this will allow sufficient time for the Department of Corrections to make that change,” Governor Riley said. “It
is my desire that, as soon as the stay has expired, justice will be administered to Thomas Arthur. I have encouraged the Attorney General to make a motion with the Alabama Supreme Court for a new date of execution as soon as possible.”

###

Second is an editorial published on September 25, 2007 by The Birmingham News.

Riley fails test, again

THE ISSUE: Once again, Gov. Bob Riley has refused to order DNA testing that could shed light on a death-penalty case. This is a pattern that needs to be broken.

Unless courts step in or something else intervenes, the state of Alabama will execute Thomas Arthur. This much we know: That something else won't be Gov. Bob Riley.

For the second time in as many months, Riley has refused to delay an inmate's execution to allow for DNA testing that might shine light on the crime.

Riley's refusal is beyond disappointing, and it's beyond logic. The testing could have been ordered two weeks ago without even requiring a delay of the execution, according to the Innocence Project.

While there is some evidence implicating Arthur of involvement in the 1982 murder of Troy Wicker, there are certainly reasons to wonder if the crime went down as prosecutors claim. Even Wicker's family wonders what really happened and has expressed support for DNA testing that could shed some light on Wicker's death.

"I would like to see this evidence subjected to DNA testing," Peggy Wicker Jones said in an Aug. 21 statement. "I would like to have as much information as possible about what happened on the day my brother Troy was murdered."

The Innocence Project, the famed New York organization whose DNA work has cleared more than 200 inmates across the country, doesn't take the position Arthur is innocent. But it does argue the evidence in Arthur's case should be subjected to the best scientific testing available.

DNA testing, which had not been developed when Arthur was tried, might merely confirm his guilt. But it might also implicate someone else, someone who has so far not been held accountable for the slaying. Either way, it's a win.

Governors in other states have ordered DNA testing in similar death penalty cases. Among them was a former Texas governor named George W. Bush, as well as his brother, former Florida Gov. Jeb Bush.

But not Riley.

In a statement criticizing Alabama's governor, the Innocence Project pointed out that 15 of those cleared nationwide by DNA testing were on Death Row and that some of them were days away from execution when they were exonerated.

"If any of those 15 people had been in Alabama, they would be dead today," Innocence Project co-director Peter Neufeld said last Wednesday.

Neufeld called it "unconscionable" that Riley won't insist on using the best science to determine the truth before putting inmates to death. Neufeld is right.

Before inflicting a punishment that can't be undone, the state of Alabama should be eager to order DNA testing in cases where any biological evidence is available. Indeed, such testing in old cases should be available by law, as it is already in 42 states.

Unfortunately, in Alabama, the test rests in the hands of the governor. Once again, Riley has failed that test.

UPDATE: Arthur maintains innocence, challenges lethal injection as execution date nears

Originally published by the Tuscaloosa News

Sep 19, 2007

By Dana Beyerle Montgomery Bureau

MONTGOMERY The daughter of condemned inmate Tommy Douglas Arthur pleaded Wednesday for a stay of her father’s scheduled Sept. 27 execution until a federal court can rule on a request to test DNA from the 1982 murder he was convicted of.

Sherrie Arthur Stone said DNA testing of evidence could exonerate her father, who in a recent telephone interview with the TimesDaily of Florence said he is innocent in the shooting death of Colbert County businessman Troy Wicker.

"All we’re asking, and ever have, is to test the DNA evidence that was found but never tested," Stone said. "Whether you believe in the death penalty or not, you should test the DNA evidence."

Arthur, 65, lost one federal appeal and is quickly running out of options as his scheduled date with the lethal injection chamber at Holman Prison nears.

Arthur was convicted three times and sentenced to die for Wicker’s death. Wicker’s widow originally said a black male broke into their home, raped and beat her, and when she came to her husband was dead.

She later testified that she hired Arthur to kill her husband. Arthur was convicted based on her testimony and on circumstantial evidence that was gathered before DNA testing was available.

Arthur lost one of his latest appeals when a panel of federal judges said Arthur waited to long to challenge the constitutionality of Alabama’s use of lethal injection.

In a 2-1 opinion and without addressing the merits of his appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld a U.S. District Court ruling. The unpublished opinion was released Monday.

"There is no justification for Arthur’s failure to bring this lethal injection challenge earlier to allow sufficient time for full adjudication on the merits of this claim," the unsigned opinion said.

U.S. Circuit Judge Rosemary Barkett dissented, saying the lower court made a mistake refusing to hear Arthur’s "challenge to Alabama’s lethal injection protocol" simply because he failed to file a claim as soon as the Alabama Legislature changed the method of execution to lethal injection.

Arthur can still go to the U.S. Supreme Court, which his attorney said he’ll do, and he still has an appeal in the 11th U.S. Circuit to test the crime scene DNA.

"We respectfully disagree and strongly believe that before Mr. Arthur is executed by lethal injection, the constitutionality of the method should be addressed," said attorney Suhana Han.

She said Alabama has hired an expert to review the drugs used in lethal injection and there is the pending federal trial in Montgomery over the legality of lethal injection.

Han asked what the harm was in waiting for the outcome of the trial and the testimony of Dr. Mark Dershwitz?

"How can the state of Alabama execute Mr. Arthur before a federal court rules?" Han asked. "Again, the point is we are trying to address the merits of a very important question, whether the state is planning to execute Arthur by an unconstitutional method."

Dr. Dershwitz’s contract to be an expert witness about Alabama’s method of execution was renewed by the legislative contract review committee earlier this month for the Attorney General’s Office earlier. He’s scheduled to be an expert witness in an upcoming trial over lethal injection in Montgomery federal court.

Arthur still has an appeal seeking DNA testing that wasn’t available when he was first tried. The 11th U.S. Circuit Court has not ruled on the DNA request.

The anti-death penalty group, Amnesty International, has taken up Arthur’s case, saying since he’s potentially innocent he should get a hearing on evidence that could raise doubts about his guilt.

Tom Smith of the TimesDaily in Florence contributed to this story.

Guest Shot: How Justice Gets Done in Spite of the Justice System

Commentary by PETE SHELLEM /
Of The (Harrisburg, PA) Patriot-News
09/14/07

Sometimes justice happens in spite of the justice system.

Sometimes it only happens when the people in the justice system get their noses rubbed in their messes.

On Tuesday, Lancaster County District Attorney Donald R. Totaro did the right thing by freeing Charles T. "Ted" Dubbs from a 12- to 40-year prison term in two sexual attacks he probably did not commit. Dubbs was sentenced in May 2002.

Wilbur Cyrus Brown, a serial rapist who confessed to 13 other rapes, including one on the same jogging trail where Dubbs supposedly committed his crimes, confessed to those attacks in November.

But Totaro had to spin things to portray his office as a well-oiled machine that immediately turned to fix an honest error when it came to their attention.

That’s not what happened.

The case first came to my attention when Brown pleaded guilty last November and was sentenced in Dauphin County Court. It came out at that hearing that Brown had confessed to crimes for which Dubbs was wasting away in prison still proclaiming his innocence.

When I asked about it afterward ­- assuming they were going to free an innocent man - I got the exchanged glances, awkward smiles and the "no comments."

It was after that I got the proverbial bug in the ear. The cops figured it was a no-brainer, but Totaro’s office didn’t want to hear it. Maybe it had something to do with the election year.

True, Totaro’s first assistant at the time, Heidi Eakin, pointed out the similarities between the cases. But when members of the task force investigating the serial rapes presented her with Brown's 60-page confession, she got her back up.

When I interviewed her in May, she was adamant that Dubbs was guilty and called his alibi defense "a joke." She speculated Brown was a copycat who committed 13 subsequent rapes after reading about Dubbs’s arrest and conviction.

Eakin said she specifically told the police not to reinterview the victims. When asked what she was doing to investigate the confession she told me "that’s not my job."

As an officer of the court, she was obligated to give the confession to the county public defender’s office. From there, it was forwarded to Dubbs.

Dubbs was on his own. Fortunately, he had the wherewithal to file a post conviction appeal on his own.

If you read the documents filed by Totaro’s office, they go to great pains to explain why Dubbs had to sit in prison for almost a year after his office had compelling evidence Dubbs was innocent. It also appears to be a response to an article published in The Patriot-News in May, an article Totaro called a "hatchet job."

Although he claims his office was investigating the case all along, his petition to release Dubbs says someone was assigned to look into it sometime after March. It was about that time I began asking questions about the case. The Lancaster investigators didn’t interview the detectives who took the confession from Brown until June and they were still under subpoena for a hearing that was supposed to take place Thursday.

Totaro’s filing also says Brown’s initial confession "was originally considered by those in law enforcement who were familiar with the case with a substantial amount of skepticism," because of inconsistencies with the crimes.

In fact, the lead investigators of the task force were the ones that took the confession. Even if some details were wrong, it wasn’t inconceivable that a man who they knew through DNA testing committed an assault on a woman in the same location a year later while Dubbs was in prison and then a dozen more might have committed these "signature crimes."

After duplicating much of the probe that was done at the time of Brown’s confession, Totaro’s investigators interviewed Brown last week and determined he was likely telling the truth. Not only that, he told them that he had written a letter at the time of his arrest admitting those crimes. It was addressed to state police Cpl. George Cronin and sent to his mother with instructions that it only be opened if he died.

To their credit, they located that letter, which seemed to be the clincher in the decision to drop the case against Dubbs.

Dubbs’ conviction was an honest mistake. Although the identification process was flawed, the victims were adamant he was their attacker and only expressed doubts after seeing the video of Brown’s detailed confession.

It’s fortunate it ended the way it did. In many of the wrongful convictions that have been exposed in recent years, dishonest cops were to blame.

If it weren’t for a few conscientious law enforcement officers, Dubbs might have rotted in prison for another decade.

PETE SHELLEM: 717-255-8156 or pshellem@patriot-news.com

Troy Davis Video Project

October 9th is Troy Anthony Davis’ birthday and in celebration of this occasion we’re asking all of his supporters worldwide to send him a video birthday message and to post that message on YouTube.

The Troy video project is simple. Using a webcam, camera phone, camcorder or any other recording device, simply record a positive video of 60-seconds or less whishing Troy a ‘Happy Birthday’ while reaffirming to the state of Georgia that the global support network behind Troy believes innocence matters

As you know, serious doubts of Troy ’s guilt have been raised in recent months, and we want to take this occasion to let the world know that innocence indeed does matter!

With so many Troy supporters around the world, we want these messages to be lively and creative. Feel free to sing it, rap it, play it, draw it, dance it, paint it, shout it from the roof-tops. What you say or how you say it isn’t important. What’s important is that you just say it!

Please keep these messages positive and refrain from bad language and controversial statements that could be viewed as inflammatory. We don’t want to upset people - we just want to show the world that Troy has global support in his fight for justice.

After you’ve recorded this message – please post it on YouTube using this link: http://www.youtube.com/group/NCADP and email the video to: troyvideo@gmail.com

Let’s not only give Troy a "Happy Birthday," let us also speak loud and clear in one voice that Innocence Matters!

Gregory A. Joseph
National Coalition to Abolish the Death Penalty
www.ncadp.org
gjoseph@ncadp.org

Guest Shot: Gonzo given even more power over life and death

by Mary Shaw

August 16, 2007

Since the first DNA exoneration took place in the U.S. in 1989, 142 people have been freed via DNA evidence after being wrongfully convicted of crimes they did not commit. Many more have been exonerated via other kinds of late-coming evidence.

Some of those innocent people were freed from death row. These folks are the "lucky" ones, because they had a chance to prove their innocence before they were put to death. How many have not been so lucky? We cannot know.

But do we really want to risk that kind of mistake?

Even if you're in favor of the death penalty, surely you want to take every precaution to ensure that the condemned prisoner is truly guilty, and that you're not killing the wrong person. And often that takes time.

Nevertheless, time may not be an available luxury for prisoners in the future, even those condemned to die.

The Washington Post reported yesterday that Attorney General Alberto Gonzales will be getting "expanded powers to hasten death penalty cases under regulations being developed by the Justice Department."

The Post goes on to say that these new rules "would give Gonzales the authority to approve "fast-track" procedures by states in death penalty cases, enabling them to carry out sentences more speedily and with fewer opportunities for appeal if those states provide adequate representation for capital defendants."

There are a lot of things wrong with these new rules. For example, as cited in the article, they do not provide enough oversight to ensure that defendants are receiving adequate legal counsel. They "allow states to ... claim they have a capital representation case that is functional, when in fact it might not be functional at all" and "It may not prevent people from being wrongfully sentenced to death."

The article also contends that "the underlying legislation is faulty because it allows Gonzales, who is the nation's chief prosecutor, to effectively determine the pace of executions."

And there are more reasons to believe that Gonzales is the wrong person to do this. (Click here to read about Gonzales's horrific track record on death penalty cases in Texas.)

It is obvious that these new rules will make it easier for innocent people to be executed. And even one wrongful execution is too many.

How would Gonzales feel if one of his family own members were on death row, wrongfully accused of a crime that he or she did not commit? Does he believe that it could never happen? Or would that be somehow different?

-----
Author's Website: http://www.maryshawonline.com

Authors Bio: Mary Shaw is a Philadelphia-based writer and activist. She is a former Philadelphia Area Coordinator for the Nobel-Prize-winning human rights group Amnesty International, and her views on politics, human rights, and social justice issues have appeared in numerous online forums and in newspapers and magazines worldwide. Note that the ideas expressed here are the author's own, and do not necessarily reflect the opinions of Amnesty or any other organization with which she may be associated. E-mail: mary@maryshawonline.com

Guest Shot: Innocents in Prison

Atlantic Unbound August 7, 2007
Legal Affairs by Stuart Taylor Jr.

Innocents in Prison

Many thousands of wrongly convicted people are rotting in prisons and jails around the country.

As recently as 20 years ago, it was extraordinarily rare for a convicted prisoner to establish his or her innocence conclusively enough to get public attention. That changed with breakthroughs in DNA science.

The 205th DNA exoneration since 1989 was recorded earlier this month by the Innocence Project, a group of crack defense lawyers who have made such cases their mission. The exonerated prisoners­including 15 who had been sentenced to death­have been found innocent by courts, prosecutors, or governors based on post-conviction DNA testing.

But America has been too slow to appreciate that the DNA exonerations, and other evidence, suggest that many thousands of other wrongly convicted people are rotting in prisons and jails around the country. And our federal, state, and local governments and courts have done far too little to adopt proposed criminal justice reforms that could reduce the number of innocent people convicted while nailing more of the real criminals.

The case of the most recent DNA exonoree, Byron Halsey, was typical: Based on a confession full of obviously false details, extracted by high-pressure interrogation, he spent 19 years in prison in New Jersey for two heinous child murders committed by another man in 1985. Halsey was able to prove his innocence only after a 2002 New Jersey law forced reluctant prosecutors to give his counsel access to DNA evidence. In Halsey's and some 70 other DNA-exoneration cases, DNA also helped to establish the guilt of the real perpetrators. All or almost all had committed other violent crimes before being caught.

The kind of DNA evidence that can conclusively prove innocence or guilt is available only in a small fraction of cases, mainly rapes and rape-murders in which sperm is recovered. But these cases are the tip of the iceberg. Extrapolation from DNA and other exonerations suggests that the overall error rate in violent-crime prosecutions is probably much higher than the estimates of less than 1 percent offered by many criminal-justice officials.

In a stunning non-DNA case that shows how low law enforcement can go, a federal District judge in Boston ordered the government on July 26 to pay $102 million in damages to victims of the FBI's "outrageous" role in framing four men for a 1965 gangland murder. The four spent a combined total of 109 years in prison. Two died there.

"FBI officials up the line allowed their employees to break laws, violate rules, and ruin lives," wrote the judge, Nancy Gertner. She found that the FBI had known all along that a mob hit man named Joseph Barboza was lying when he claimed he saw the four men kill a mobster named Edward Deegan. Barboza and the FBI protected the real killer, Vincent Flemmi, because Barboza and Flemmi were FBI informants.

Although that was decades ago, the FBI (like most police agencies) still insists on a policy­ of virtual prohibition of tape-recording interviews­that allows agents to conceal or distort what suspects and witnesses say. The usual motive is not to frame innocent people but to fit evidence to preconceived (and often mistaken) theories of the case.

The FBI has defended its policy on the grounds that taping might deter suspects from talking and that jurors might be offended to hear police using lawful but deceptive interrogation tricks such as lying to suspects and feigning sympathy. But the first concern seems far-fetched in most cases and the second is illegitimate. Refusing to tape interviews hides important evidence from juries as well as lending itself to abuse.

Police and/or prosecutorial misconduct appears to figure in more than half of the 205 convictions that DNA has proven false. Specific reasons for those convictions are catalogued in "Judging Innocence," a study by Brandon Garrett, a law professor at the University of Virginia, slated for publication in January in the Columbia Law Review. Mistaken eyewitness identifications­often due to police subtly pointing witnesses toward the people the cops suspect­figured in 79 percent of these false convictions. Flawed or corrupt testimony by scientific "experts" (about hair, blood types, and the like) figured in 55 percent. False confessions, mostly by juvenile defendants, figured in 16 percent.

What percentage of the 2.2 million men and women locked up in state and federal prisons and local jails are actually innocent of the charged crimes? This is not knowable with any confidence. But we can extrapolate from a few data points.

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes. And an unknown number of innocents have not been exonerated.

Does this suggest that we may have 50,000 innocent prisoners (2.3 percent times 2.2 million) in this country? Possibly, but not necessarily. Gross and Barbara O'Brien of Michigan State Law School stress in another forthcoming article that capital cases (and the DNA exonerations) are not representative of false convictions in general.

On the one hand, for example, the percentage of actual innocents may be higher among capital murder defendants­virtually all of whom go to trial­than among the 90 percent of violent-crime defendants whose cases end in plea bargains.

On the other hand, a much higher percentage of, say, robbery convictions than of capital murder convictions are based on unreliable eyewitness identifications. So perhaps the robbery error rate is much higher than 2.3 percent. And it's clear that most people wrongly convicted of lesser crimes are far less likely to win exoneration than are death-row inmates (who get much better post-conviction legal representation) and rape convicts (when DNA evidence is available).

Gross and others have also found that a very disproportionate number of exonerated prisoners are black or Hispanic. Discrimination no doubt accounts for some of this. So does the especially high error rate in cross-racial identifications, which creates special risks for black men wrongly accused of raping or robbing white people.

But well-off white men are not exempt from wrongful prosecution. This was spectacularly illustrated by the fabricated rape charges against three innocent Duke lacrosse players. Durham District Attorney Mike Nifong falsely demonized them as rapists, racists, and "hooligans," thereby gaining enough black votes to win what had been an uphill election battle. Nifong (who is white) also rigged a photo-identification process to frame the three for a nonexistent crime, hid DNA proof of innocence, and lied to the public and the court for many months before North Carolina Attorney General Roy Cooper took over the case and declared the defendants innocent.

Nifong has been disbarred and still faces a contempt-of-court charge. But his richly deserved fate is almost unheard-of. Most state bars and judges have given passes even to prosecutors who have hidden or falsified evidence to put innocent men and women on death row.

The DNA exonerations have spurred reforms by some states, but most still use shockingly unreliable police practices.

The good news, according to the Innocence Project, is that 42 states and the District of Columbia now require that inmates be given access to any DNA evidence; 22 (plus D.C. and the federal government) require preservation of DNA evidence; and 22 (plus D.C. and the federal government) compensate victims of false convictions.

But only three states (and some cities) have adopted the reforms to eyewitness procedures­such as excluding officers who know which person is the suspect, among other safeguards­that experts say are necessary to prevent false identifications. And only the District of Columbia, nine states, and some 500 localities keep police honest by requiring them to tape interrogations.

The courts, meanwhile, have "performed miserably in ferreting out the innocent" convicts, as Adam Liptak observed in a July 23 New York Times column. The Garrett study shows that the Supreme Court refused to hear the appeals of 30 of the first 200 prisoners who were later exonerated and rejected the one appeal it did hear.

The justices, and Congress, have also made it difficult for state prisoners to seek relief in lower federal courts. Most recently, on June 15 the conservative high court majority slammed the door on a murder convict because his lawyer had filed his appeal three days late­on the mistaken advice of a federal District judge. This decision seems perverse, especially in an era of DNA exonerations when, as a Justice Department commission observed in 1999, "the strong presumption that verdicts are correct, one of the underpinnings of restrictions on post-conviction relief, has been weakened."

Indeed, so formidable are the procedural obstacles facing falsely convicted innocents that only 10 percent of the 205 DNA exonorees made their innocence the basis of their initial appeals­and none was successful. This reflects the appeals courts' almost exclusive focus on whether the prosecutor or judge made procedural errors and almost complete deference to findings of guilt by juries and trial judges. They should defer less.

The URL for this page is http://www.theatlantic.com/doc/200708u/innocents-in-prison.

Guest Shot: Selective Prosecution

The following editorial was published in the New York Times on August 6, 2007.

Selective Prosecution

One part of the Justice Department mess that requires more scrutiny is the growing evidence that the department may have singled out people for criminal prosecution to help Republicans win elections. The House Judiciary Committee has begun investigating several cases that raise serious questions. The panel should determine what role politics played in all of them.

Putting political opponents in jail is the sort of thing that happens in third-world dictatorships. In the United States, prosecutions are supposed to be scrupulously nonpartisan. This principle appears to have broken down in Alberto Gonzales’s Justice Department — where lawyers were improperly hired for nonpolitical jobs based on party membership, and United States attorneys were apparently fired for political reasons.

Individual Democrats may be paying a personal price. Don Siegelman, a former Alabama governor, was the state’s most prominent Democrat and had a decent chance of retaking the governorship from the Republican incumbent. He was aggressively prosecuted by both the Birmingham and Montgomery United States attorney’s offices. Birmingham prosecutors dropped their case after a judge harshly questioned it. When the Montgomery office prosecuted, a jury acquitted Mr. Siegelman of 25 counts, but convicted him of 7, which appear to be disturbingly weak.

The prosecution may have been a political hit. A Republican lawyer, Dana Jill Simpson, has said in a sworn statement that she heard Bill Canary, a Republican operative and a Karl Rove protégé, say that his "girls" — his wife, the United States attorney in Montgomery, and Alice Martin, the United States attorney in Birmingham — would "take care" of Mr. Siegelman. Mr. Canary also said, according to Ms. Simpson, that Mr. Rove was involved.

Georgia Thompson is a Wisconsin state employee wrongly put in jail on corruption charges by the Milwaukee United States attorney. Despite strong evidence that she was innocent, Steven Biskupic prosecuted Ms. Thompson for corruption and got a conviction. The news hit shortly before a bitterly fought governor’s race, and opponents of James Doyle, the state’s Democratic governor, used the conviction to attack Mr. Doyle as corrupt. An appeals court later freed Ms. Thompson, but only after she had spent months in jail.

The committee has requested documents from the Justice Department about those two cases. It should also look into the investigation of Senator Robert Menendez by Christopher Christie, the United States attorney for New Jersey. Based on the facts that have come out, Mr. Menendez appears to have done nothing wrong. But word of the investigation leaked out in the fall of 2006, damaging Mr. Menendez’s reputation just when Republicans were trying to defeat him. It is unclear whose idea it was to conduct an investigation so close to the election of Mr. Menendez’s lease of a building he had sold years earlier.

The Bush administration is throwing roadblocks in Congress’s way. It missed a deadline for turning over documents, and it has refused to make some of the principal actors available to testify. The Judiciary Committee should not be deterred. If Americans are being put in jail for political reasons, Congress must put a stop to it.

Guest Shot: The Presence of Malice

This Op-Ed was originally published in the New York Times on August 2, 2007.

By RICHARD MORAN
South Hadley, Mass.

LAST week, Judge Nancy Gertner of the Federal District Court in Boston awarded more than $100 million to four men whom the F.B.I. framed for the 1965 murder of Edward Deegan, a local gangster. It was compensation for the 30 years the men spent behind bars while agents withheld evidence that would have cleared them and put the real killer — a valuable F.B.I. informant, by the name of Vincent Flemmi — in prison.

Most coverage of the story described it as a bizarre exception in the history of law enforcement. Unfortunately, this kind of behavior by those whose sworn duty it is to uphold the law is all too common. In state courts, where most death sentences are handed down, it occurs regularly.

My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel. (There were four cases in which a determination could not be made one way or another.)

Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.

Mistakes are good-faith errors — like taking the wrong exit off the highway, or dialing the wrong telephone number. There is no malice behind them. However, when officers of the court conspire to convict a defendant of first-degree murder and send him to death row, they are doing much more than making an innocent mistake or error. They are breaking the law.

Perhaps this explains why, even when a manifestly innocent man is about to be executed, a prosecutor can be dead set against reopening an old case. Since so many wrongful convictions result from official malicious behavior, prosecutors, policemen, witnesses or even jurors and judges could themselves face jail time for breaking the law in obtaining an unlawful conviction.

Strangely, our misunderstanding of the real cause underlying most wrongful convictions is compounded by the very people who work to uncover them. Although the term “wrongfully convicted” is technically correct, it also has the potential to be misleading. It leads to the false impression that most inmates ended up on death row because of good-faith mistakes or errors committed by an imperfect criminal justice system — not by malicious or unlawful behavior.

For this reason, we need to re-frame the argument and shift our language. If a death sentence is overturned because of malicious behavior, we should call it for what it is: an unlawful conviction, not a wrongful one.

In the interest of fairness, it is important to note that those who are exonerated are not necessarily innocent of the crimes that sent them to death row. They have simply had their death sentences set aside because of errors that led to convictions, usually involving the intentional violation of their constitutional right to a fair and impartial trial. Very seldom does the court go the next step and actually declare them innocent.

In addition, some of these unlawful convictions resulted from criminal justice officials trying to do the right thing. (A police officer, say, plants evidence on a defendant he is convinced is guilty, fearing that the defendant will escape punishment otherwise.) In cases like these, officers or prosecutors have been known to “frame a guilty man.”

The malicious or even well-intentioned manipulation of murder cases by prosecutors and the police underscores why it’s important to discard, once and for all, the nonsense that so-called wrongful convictions can be eliminated by introducing better forensic science into the courtroom.

Even if we limit death sentences to cases in which there is “conclusive scientific evidence” of guilt, as Mitt Romney, the presidential candidate and former governor of Massachusetts has proposed, we will still not eliminate the problem of wrongful convictions. The best trained and most honest forensic scientists can only examine the evidence presented to them; they cannot be expected to determine if that evidence has been planted, switched or withheld from the defense.

The cause of malicious unlawful convictions doesn’t rest solely in the imperfect workings of our criminal justice system — if it did we might be able to remedy most of it. A crucial part of the problem rests in the hearts and souls of those whose job it is to uphold the law. That’s why even the most careful strictures on death penalty cases could fail to prevent the execution of innocent people — and why we would do well to be more vigilant and specific in articulating the causes for overturning an unlawful conviction.

Richard Moran is a professor of sociology and criminology at Mount Holyoke College.

Must-See TV: Dateline NBC To Broadcast 2-Hour Documentary About Two Men Claiming Innocence, on Sunday, August 5th, 7p.m to 9 p.m. (EDT and PDT)

(New York) – July 26, 2007 – As a controversial retrial looms for David Lemus, a man who served 15 years in prison before having his murder conviction overturned in 2005, NBC News' Peacock Productions presents its first feature length documentary film about his case, "In the Shadow of Justice." The two-hour broadcast, airing on Sunday, Aug. 5 (7:00 p.m. ET), advances Dateline's groundbreaking 2005 investigative report on the 1990 murder of Palladium nightclub bouncer, Markus Peterson, and immerses viewers in a case that made headlines as it unfolded.

While The Manhattan District Attorney's office insists Lemus is guilty of the murder, and is retrying him, they declined to comment on the film. However, the 23-year veteran Assistant District Attorney Daniel Bibb who argued at a hearing to keep Lemus and Olmedo Hidalgo (the other man convicted in the murder) in prison is now speaking out for the first time in the film. He says as he led a re-investigation of the case, he became convinced the men were innocent. He has since left the DA's office, saying he was tortured by the fact that his superiors, in his account, forced him to argue to keep two innocent men in prison.

Bibb says, "The people making the decisions (within the DA's office) wanted to go to the hearing." When pressed specifically about District Attorney Morganthau's involvement in the decision-making process, Bibb replies, "…He was aware of what was going on."

NBC's interest in the case began in 2002 when Dateline producers were granted rare access to Bronx homicide detectives Bobby Addolorato and John Schwartz as they re-investigated the case. Our cameras were rolling as the detectives discovered astonishing new evidence suggesting that Lemus and Hidalgo might actually be innocent. The detectives also believe they uncovered documents that suggest the DA's office buried evidence that proved Lemus and Hidalgo were innocent.

After the Dateline report aired, not only were the two men exonerated and able to go home to live with their families for the first time in 15 years, but weeks later a man who many believed to be the real shooter was arrested. The man, Thomas "Spanky" Morales, had appeared in the broadcast after NBC producers tracked him down. "Spanky," who spent nearly 18 months in jail awaiting trial for this murder, is now a free man after a judge threw out his case saying law enforcement had the obligation to arrest him years ago based on the ample evidence it possessed pointing to him as the shooter.

In the end, "In the Shadow of Justice" documents how the case changed many lives forever. For detectives Addolorato and Schwartz, it was a journey of conscience and confrontation that they say ended their careers. The film includes exclusive interviews with defendants Lemus and Hildago, eyewitnesses to the crime, family members, attorneys, the foreperson of the jury, Carol Kramer, who voted to convict the men and then asked for their release, and Thomas "Spanky" Morales.

David Corvo is the executive producer; Adam Gorfain is the senior producer; Daniel Slepian is the producer; Michael Nardi is the field producer; and Robert O. Allen is the editor.

Guest Shot: DNA Tests Alone will not Protect the Innocent

The following editorial was originally published in the Newark, NJ Star-Ledger.

by John Holdridge

DNA testing has produced its 205th exoneration nationwide of an innocent prisoner, a number that includes 15 inmates imprisoned on death row. The "lucky" prisoner is Byron Halsey, who was proven innocent by DNA after allegedly confessing to the sexual assault and murders of two young children in Plainfield, narrowly avoiding the death penalty and spending some 20 years in state prison for crimes he did not commit. Halsey is the fifth New Jersey prisoner exonerated through DNA.

But while we all breathe a sigh of relief when we hear that an innocent person has been prevented from spending one more unjust day behind bars, it is critical to remember that DNA evidence is available in only a small percentage of criminal cases. It is a serious mistake to believe that DNA testing is adequate protection for the wrongly accused or convicted, including those sentenced to die.

The 205 exonerations throughout the country reveal serious and widespread problems with our nation's criminal justice system. The Innocence Project, the group primarily responsible for the exonerations, has discovered in its cases abysmal legal representation, including overburdened and underfunded defense attorneys; faulty eyewitness identification, the greatest cause of wrongful convictions, playing a role in more than 75 percent of convictions overturned through DNA testing; bogus "scientific" forensic identification, including hair analysis, bite mark evidence, ballistics, blood typing and others; prosecutorial misconduct, including failing to disclose exculpatory evidence to the defense; lying informants and jailhouse snitches, who were involved in more than 15 percent of the DNA exoneration cases, and false confessions.

These deficiencies exist in equal percentages in all criminal cases. They are not any more prevalent in cases with DNA evidence than without. Yet in the vast majority of criminal cases, there is no DNA evidence to test and possibly exonerate innocent prisoners. The best estimate is that DNA evidence exists in only 10 to 15 percent of all murder cases.

The high number of wrongly convicted prisoners exonerated by DNA testing is just the tip of the iceberg of innocent lives being spent behind bars and even sent to death chambers. These stories must serve as a stark reminder of additional measures we must take to increase the accuracy of our criminal justice system across the nation. To name just some of the most important, it is critical that we:

Improve the poor quality of legal representation received by criminal defendants, including by reducing the caseloads of public defenders and providing them with sufficient resources.

Insist upon fair eyewitness identification procedures to reduce the number of misidentifications. In 2001, New Jersey became the first state to require fairer eyewitness identification procedures. It is now one of only three states to do so, having been joined by North Carolina and Wisconsin.

Have courts require that all "scientific" evidence introduced at a trial meet the demanding requirements of true science.

Severely sanction prosecutors who engage in misconduct. The disbarment of Durham, N.C., prosecutor Mike Nifong because he failed to disclose exculpatory evidence to the wealthy, white Duke lacrosse players was a notable - and exceedingly rare - example of such sanctioning.

Either bar the testimony of jailhouse snitches, particularly those who are granted "favors" in exchange for the testimony, or instruct jurors to view such testimony with great caution.

Require that confessions be recorded and allow defendants to present to their juries testimony by experts in false confessions. The New Jersey Supreme Court has ordered that interrogations be recorded in all homicide cases beginning in 2006 - too late for Halsey and virtually all other prisoners incarcerated in the state. New Jersey is one of only seven states that require recordings of interrogations.

DNA testing alone does not - and cannot - protect the innocent. Our criminal justice system is in serious need of repair. We are morally obliged to apply the lessons learned from DNA and repair the system.

Gues Shot: Tunnel Vision

The following editorial was originally published in the New York Times on July 15, 2007.

Everyone knew Jeffrey Deskovic was guilty.
Everyone was wrong, but that did not prevent his being convicted in 1990 for the murder of a 15-year-old classmate, and his being wrongfully imprisoned for the next 16 years.

A report released this month by the Westchester district attorney, Janet DiFiore, details the tragic pileup of mistakes, carelessness, incompetence and ''tunnel vision'' that robbed Mr. Deskovic, now 33, of half his life. A reading of the report, available at http://www.da.westchester.ny.us/, gives a chilling view of the horrible and multiple ways the justice system can malfunction.

It prompts respect for the Innocence Project, which fought for Mr. Deskovic's freedom, and admiration for Ms. DiFiore, who undid the wrongs of two predecessors with her willingness to examine the DNA evidence that exonerated Mr. Deskovic. Ms. DiFiore also deserves much credit for commissioning the report, prepared by two retired judges, a former prosecutor and a legal aid lawyer, whose analysis of this case is vividly clear and deeply unsettling.

The report could be a primer for the Legislature, which should seriously consider the recommendations when it reconvenes this month.

The list of misdeeds is long, but one common thread is what the report called ''tunnel vision,'' the narrowing of outlook that sealed Mr. Deskovic's fate once the powers that be, from the police to prosecutors, became convinced that he was guilty.

Perhaps the most distressing part of Mr. Deskovic's long battle for vindication was his repeated inability to persuade prosecutors to compare DNA from the crime scene with samples in state and federal databases.

The judge in the case praised Ms. DiFiore's office for its open-mindedness in granting Mr. Deskovic's simple request to honor what should be a defendant's basic right. The other central recommendations in the report include a requirement to videotape interrogations and the creation of a state ''commission of inquiry'' to examine the errors and misdeeds that lead to wrongful convictions, and to recommend steps to prevent them.

The mandatory videotaping of interrogations is a matter of particular importance. Mr. Deskovic was an emotionally vulnerable and confused suspect, a teenager at that, and under heavy pressure he falsely confessed to the crime. Taped interrogations would help to improve questioning tactics -- beyond discouraging outright abuses by overaggressive police officers -- and help jurors to identify false confessions.

There is one more recommendation for action that is implicit in the report. It would not come from Albany, but from the host of individuals -- from detectives to Ms. DiFiore's immediate predecessors -- who were active participants in a gross miscarriage of justice.

The report recounts the moment last November when Westchester's first deputy district attorney told the court that the case was being dropped because Mr. Deskovic was ''actually innocent.'' The prosecutor went on to offer ''the most sincere apologies we can muster on behalf of the Westchester County District Attorney's Office and the Peekskill police.''

The report said that Mr. Deskovic expressed appreciation for the gesture. It also said it was the first public apology he had received.

Guest Shot: Despite conviction, DNA retest apt in elderly woman's murder

by Elmer Smith
Originally published in the Philadelphia Daily News on July10, 2007

IN THE US VS. THEM world of prosecutors and perpetrators, we have a rooting interest in seeing the full weight of the law slam down on the perps.

I get that. I also understand how going after someone as depraved as the killer of Louise Talley becomes more of an obsession than an objective. That is precisely the mindset I want the district attorney's office to march into battle with.

Talley, a 77-year-old Nicetown woman, was raped and stabbed to death in her bedroom in 1991. Anthony Wright, then 22 and an admitted drug addict, signed a statement confessing that he was the killer. A jury, noting the confession and the testimony of witnesses who placed him near the scene of the crime, convicted him of first-degree murder 14 years ago.

But the D.A.'s open-and-shut case is threatening to come open again. Wright, represented by the Innocence Project, is scheduled to be in Superior Court today seeking DNA testing of blood and semen stains recovered at the time of his arrest. DNA tests 16 years ago proved inconclusive.

The D.A.'s office is vigorously opposing new DNA testing. I want to believe it is fighting to keep DNA evidence out in the interest of justice.

Except that, for the life of me, I can't see how justice is served by suppressing a test result that could point to another perpetrator.

If Louise Talley's murderer is still out there, I want my D.A.'s office to go after him with the same fervor that led to Anthony Wright's conviction.

Instead, the D.A.'s office seems more interested in holding onto Wright than it is in being absolutely sure the crime is solved. That worries me.

The D.A.'s brief bases its opposition on procedural points that may make sense in the arcane proceedings of a courtroom. But they seem disconnected from the essential question of guilt and innocence.

Their key point is that since Wright's confession was ruled valid after he tried to rescind it at trial, "he is barred from asserting his innocence."

But the Innocence Project has proved the actual innocence of more than 50 defendants who had signed confessions to the crimes they were falsely convicted of, three of them in Pennsylvania alone.

The D.A.'s office acknowledges this. "There is no doubt that innocent voluntary confessors, while they are rare, are no exception to the truism that anything is possible," the D.A. concedes in the brief.

But the D.A. goes on to argue that the "law of case doctrine" bars Wright from "asserting innocence" once a judge has ruled that the confession was valid.

In an even-less-principled argument, the D.A. asserts that the DNA request was not filed in "a timely manner." Therefore, the D.A. concludes, "there is no reason for the court to address the merits."

But the Pennsylvania law, which allows for post-conviction DNA testing, sets no time limits. Besides, I never want to hear the D.A. argue against having a court "address the merits" of any case.

The D.A. argues that the trial record contains "overwhelming evidence of guilt." I agree.

The signed confession and the fact that Wright was implicated by people who had nothing to gain by fingering him, as well as by co-conspirators who may have been out to cut the best deal for themselves, seem to make an airtight case against Wright.

But I would have thought that about Nicholas Yarris, Bruce Godschalk and Barry Laughman. All were convicted in "open and shut" cases. Yarris, who signed a confession, was convicted and sentenced to die.

In all three of those cases and 200 others in which the Innocence Project has fought for and won DNA tests, the testing proved they weren't the murderers.

Even more important, DNA tests in half those cases also identified the actual perpetrators, several of whom have been convicted on the same DNA evidence.

If new testing proves that we got the right man, then DNA will have done its job. If it proves that someone else murdered Louise Talley, we need to know who that is and how we can convict him.

That's really where our rooting interest lies.

Send e-mail to smithel@phillynews.com or call 215-854-2512. For recent columns: http://go.philly.com/smith

Guest Shot: Doing time for no crime

by Arthur Carmona
Originally published in the Los Angeles Times on July 13, 2007

A young man freed after being wrongly imprisoned argues for three remedies.

ONE WEEK after my 16th birthday, I was arrested and charged with crimes I did not commit. I remained behind bars in a life unsuitable for any innocent person. After I served nearly three years of a 17-year sentence, the real facts of my case began to emerge and a judge let me go free. My life, however, will never be the same, and I am determined to change the laws that make it so easy for innocent people to be convicted.

On Feb. 12, 1998, I decided to visit a friend. While I was walking down a residential street, a Costa Mesa police officer stopped me at gunpoint. I was handcuffed and surrounded by other police officers with guns drawn. One officer forced a baseball cap onto my head and made me stand on the curb. I did not know it at the time, but witnesses from a robbery had been brought to identify me in what is known as an "in-field show-up," a procedure that is highly likely to produce mistaken identifications. I was arrested in connection with 13 strong-arm robberies.

My mother was able to gather evidence proving that her 15-year-old son was in school during 11 of the robberies. But we had no evidence to prove that, at 2 a.m. on a school night, I was home asleep while someone robbed a Denny's restaurant, and we had no proof that I was home baby-sitting my 11-year-old sister during the time a juice bar in another city was being robbed.

The getaway driver, a parolee with a long criminal record, admitted being involved in the robberies. He first told police he did not know me and that I was not involved. Then the Orange County district attorney offered him a sentence of two years if he would say I was. He took the plea bargain and his story changed; he was freed from prison before I was.

The court found me guilty of two strong-arm robberies, and I was facing 35 years for crimes I took no part in. The judge sentenced me to 12 years in state prison. I was 16, with no criminal record. I would have been eligible for parole in nine years, with two strikes to my name, one strike away from a life term.

Two and a half years later, just before my hearing on getting a new trial based on a writ of habeas corpus, the Orange County district attorney offered me a deal, and after three years of suffering beatings, threats and degradation in a series of juvenile and state prisons, I accepted it. I signed a "stipulation" — a piece of paper stating that I would not sue any city, county or state prosecutors. Orange County Superior Court Judge Everett Dickey ordered me released and my felonies vacated.

Although I could finally go home, I could not go back to my old life. While I was behind bars, my high school class graduated without me. I was no longer the fun-loving teenager I once was. The criminal justice system took my innocence from me. I have not received any compensation, or even an apology. And the two felonies remain on my record, despite the judge's order and the intervention last year of then-Atty. Gen. Bill Lockyer.

Now, I am fighting to prevent wrongful convictions and to help innocent people still in prison. I am also supporting a series of state bills that would make it harder for what happened to me to happen to other people. I have traveled to Sacramento in the last two years to urge the Legislature to pass legislation that would help prevent wrongful convictions. Two of these bills passed last year, only to be vetoed by the governor. This year, three bills are being considered.

Senate Bill 756, sponsored by Mark Ridley-Thomas (D-Los Angeles), would require the state Department of Justice to develop new guidelines for eyewitness identification procedures. For example, guidelines in other states limit the use of in-field show-ups like the one that led to my wrongful conviction.

Senate Bill 511, sponsored by Elaine Alquist (D-Santa Clara), would require recording of the entire interrogation, including the Miranda warning, in cases of violent felonies. Electronic recording of interrogations would not only help end false confessions but also discourage police detectives from lying during interrogations — as they did in my case by claiming to have videotaped evidence of me.

Senate Bill 609, sponsored by Majority Leader Gloria Romero (D-Los Angeles), would prevent convictions based on uncorroborated testimony by jailhouse snitches.

The Legislature should pass all three bills, and the governor should sign them. These reforms are urgently needed to prevent wrongful and unjust incarcerations.

Prison is no place for an innocent man, let alone an innocent kid.

Guest Shot: 'Fallible' legal system must avoid injustice

By WILLIAM S. SESSIONS
Originally published in the Atlanta Journal Constitution on: 07/11/07

The release of 124 death row inmates in the United States has made clear that the administration of the death penalty is not infallible. When there are important questions about whether someone facing execution is actually guilty, those questions must be examined and resolved by the courts or, as a last resort, by the executive branch.

Troy Anthony Davis has been on death row in Georgia for more than 15 years for the murder of a police officer, and related violent crimes. I was the director of the FBI under Presidents Reagan, Bush and Clinton, and I believe that there is no more serious violent crime than the murder of an off-duty police officer who was putting his life on the line to protect innocent bystanders.

That being said, we must be convinced that the right person has been convicted. Serious questions have been raised about Davis' guilt. The murder weapon was never found, and other important physical evidence was missing. Key witnesses made inconsistent statements, and seven out of the nine non-police witnesses have now recanted or changed their original testimony, some stating that they had been pressured by the police to implicate Davis. One of the two witnesses who has not recanted his testimony has now been implicated as the real murderer by two witnesses at trial and four new witnesses. In addition, concerns have been raised about the conduct of the police and prosecutors.

Finally, it appears that the quality of legal representation Davis received during trial was, by his own lawyer's account, seriously deficient. While Davis' case proceeded through the courts, the budget of the Georgia Resource Center, which represented him, was dramatically cut. A lawyer from the Resource Center stated in an affidavit that "We were simply trying to avert total disaster rather than provide any kind of active or effective representation."

The courts considering Davis' case properly administered procedural rules that prevent those courts from considering claims that were not raised at the right time or in the right manner. However, these rules can be too restrictive and can prevent the courts from dispensing justice. They can stop the courts from hearing even claims of innocence, such as in Davis' case. They can prevent the courts from hearing these claims even if the reason they were not properly raised was because of an overburdened lawyer with insufficient resources, such as in Davis' case. As a result of these procedural obstacles, no court has examined the claims Davis' current legal team has raised.

I am a member of the Constitution Project's bipartisan Death Penalty Committee, which includes supporters of the death penalty, like me, as well as opponents. We condemned the kinds of procedural barriers that prevented the courts from addressing the merits of Davis' case, and we recommended that they be eliminated. Second, we insisted that capital defendants have competent lawyers with adequate resources.

Former Chief Justice William Rehnquist once wrote that the judicial system, "like the human beings who administer it, is fallible." I agree. Especially when it comes to a human life, the courts should always be able to examine claims of innocence.

But the matter is no longer before the courts, since the U.S. Supreme Court recently decided not to hear Davis' case.

It would be intolerable to execute an innocent man. It would be equally intolerable to execute a man without his claims of innocence ever being considered by the courts or by the executive.

Georgia's Board of Pardons and Paroles can consider the issues raised by Davis. I urge that body to immediately do so and to grant clemency.

In memory of Evan Zimmerman

by Mike “Pie” Piaskowski – Green Bay, WI

Yesterday I received the sad news that a fellow Wisconsin exoneree and good friend of mine by the name of Evan Zimmerman passed away of cancer. He was only 61.

Evan was incarcerated for more than three years after being convicted of first-degree intentional homicide in the strangulation death of his ex-lady friend in 2001. Kathy Thompson, 38, had been found dead in February 2000 in Eau Claire, WI. Ev, a former police officer himself, was arrested about a year later and was eventually convicted of the unsolved murder.

With the help of the Wisconsin Innocence Project, Ev successfully appealed on the grounds of ineffective assistance of counsel and won the right to a retrial. In 2005 the judge ruled that certain unreliable testimony could not be used at the new trial. Without the tainted evidence and nothing else to rely on the DA dropped all charges. Ev steadfastly denied any involvement in her death – maintaining his innocence from the very beginning.

After his release from prison Ev was forced to move from Eau Claire to LaCrosse, WI after bringing a wrongful-conviction lawsuit against the Eau Claire police department. Sadly, in 2006 the federal court dismissed the suit.

In 2005 the A&E channel put together a documentary about Evan’s case by the name of "Facing Life - The Retrial of Evan Zimmerman". It was aired in April 2006.

Ev was a wonderful person and will be missed by many. Let us pray that we can all work together, in Evan's name, as well as all of the exonerees throughout the country, to help eliminate these and all other forms of injustice created by our justice system.

Guest Shot: Adam Liptak on Prosecutorial Misconduct

Prosecutor Becomes Prosecuted

From
http://www.nytimes.com/2007/06/24/weekinreview/24liptak.html?_r=1&oref=slogin

The misconduct that cost the prosecutor in the Duke lacrosse case his career certainly seemed to call for a severe penalty: he withheld evidence from the defense, misled the court and inflamed the public.

Yet other prosecutors found by the courts to have done similar things have almost never lost their jobs or their licenses to practice law. Even in the aftermath of prosecutorial wrongdoing that helped put innocent men on death row, discipline has been light or nonexistent.

What makes Michael B. Nifong different?

The answer, it appears, is that he got a taste of something like his own medicine, a trial in the court of public opinion.

“The very same facts that made this case attractive to a prosecutor up for election and a huge publicity magnet — race, sex, class, lacrosse stars, a prominent university — also led to his undoing when the case collapsed and his conduct was scrutinized in and beyond North Carolina,” said Stephen M. Gillers, a law professor at New York University and the author of “Regulation of Lawyers: Problems of Law and Ethics.”

“If the same case had involved three poor men, instead of defendants with private counsel and families that supported them financially and publicly,” Mr. Gillers continued, “we would not likely see a disbarment, in North Carolina or anywhere. I’d be surprised if there were even serious discipline.”

There is widespread agreement that sanctions for prosecutorial misconduct are quite unusual, but heated dispute about why.

Prosecutors say they seldom face discipline because conduct like Mr. Nifong’s in this sexual-assault case is exceptional.

“Nifong’s case is rarer than human rabies, which is one reason it is such huge news,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. “The defense bar is piling on and trying to claim this is typical behavior.”

But the defense bar is not alone. Law professors who study professional discipline of prosecutors have also noted that misconduct like Mr. Nifong’s is often unpunished.

“A prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by the courts, and almost never by disciplinary bodies,” Bennett L. Gershman wrote in his treatise, “Prosecutorial Misconduct.”

Mr. Gershman, a former prosecutor in Manhattan who teaches law at Pace University, said the Nifong case was handled differently because of the publicity. “The fact that it resulted in national exposure,” he said, “had to have put the disciplinary body and the entire system of justice under the spotlight.”

“You have rogue prosecutors all over the country who have engaged in far, far more egregious misconduct, and in a pattern of cases,” he added. “And nothing happens.”

The Chicago Tribune, for instance, analyzed 381 murder cases in which the defendant received a new trial because of prosecutorial misconduct. None of the prosecutors were convicted of a crime or disbarred.

There have been about 120 death-row exonerations since the Supreme Court reinstituted the death penalty in 1976, said Samuel R. Gross, a law professor at the University of Michigan. (Prosecutors say the number is much smaller.)

“I don’t know of a single case of discipline against a prosecutor who engaged in misconduct that produced the wrongful conviction and death sentence, and many of the cases involve serious misconduct,” Mr. Gross said.

Indeed, the North Carolina disciplinary commission that disbarred Mr. Nifong faced criticism for its handling of two recent cases involving charges of misconduct in death-penalty cases.

In one, Alan Gell was sentenced to death after prosecutors withheld witness statements from the defense. The witnesses said they had seen the victim alive after Mr. Gell had been jailed on other charges and was physically unable to have committed the murder. Mr. Gell was acquitted at a retrial.

Two prosecutors received a reprimand.

Last year, the commission dismissed charges, largely on statute of limitations grounds, against two prosecutors accused of withholding evidence in the 1996 capital trial of Jonathan Gregory Hoffman. Mr. Hoffman has been granted a retrial.

The chairman of the disciplinary commission, F. Lane Williamson, discussed those cases as he ordered Mr. Nifong’s disbarment last Saturday. “In those two cases, the situation was very different, although you could look at it and say the harm that was caused by the conduct was greater,” Mr. Williamson said. “In both of those cases someone was actually wrongfully convicted of a capital crime.”

But the earlier cases differed from the case against Mr. Nifong, Mr. Williamson said, because neither one involved allegations of intentional wrongdoing.
That point is important, prosecutors say. What courts label prosecutorial misconduct is often the product of carelessness or oversight rather than an intent to pervert the justice system by convicting the innocent.

Mr. Nifong’s admission of wrongdoing certainly helped propel the case against him.

“It is very hard to get discipline against a prosecutor to stick,” said Rory Little, who teaches at the Hastings College of the Law in San Francisco and serves on an American Bar Association task force on prosecutorial ethics. “The main reason is that it’s just too mushy to decide intent.”

"Nifonging"

Vidkun Quisling was a fascist politician in Norway during World War II. He invited Hitler to invade and occupy the country, then proclaimed himself the new head of Norway’s government and ordered Norwegian troops to lay down their arms. His name–Quisling–has come to mean traitor.

Mike Nifong was the DA in Durham County, North Carolina. He won a close election and drew significant public attention to himself by prosecuting four Duke University lacrosse players–in the media–for allegedly raping a stripper who danced at a private party at the home of another player. The North Carolina State Bar charged him, first, with “conduct involving dishonesty, fraud, deceit, or misrepresentation” for his handling of the case. Then a second charge was issued, “systematic abuse of prosecutorial discretion ... prejudicial to the administration of justice” when it was learned Nifong withheld DNA results that cleared all four lacrosse players from their defense attorneys. Even after he was disbarred, Nifong tried to hold onto his office for another month. He had to be removed by judicial order and escorted out by the sheriff.

His name–Nifong–has come to mean a prosecutor who systematically abuses his office to obtain convictions and garner self-promoting publicity. When someone says a defendant was “Nifonged” into prison, we now have a frame of reference for the type of prosecutorial misconduct involved.

Prosecutors are supposed to play fair for both sides. State bar rules across the country are clear that a prosecutor has the responsibility of a minister of justice and not simply that of an advocate. In plain English, a defense lawyer may win with the acquittal of a client. A prosecutor, however, wins with a just outcome, which includes a ruling of innocence. That’s the ideal. It is not the reality.

The same media that hung on Nifong’s every word, painted him as the hero and the Duke lacrosse players as “hooligans,” now assures us that the Durham DA is an aberration. Wrong. The only aberration was the North Carolina State Bar, which charged, tried and disbarred him. The usual response from lawyer discipline panels is to ignore the behavior and dismiss complaints to cover the backsides of their colleagues.

A Duke University law professor, James Coleman, told The Herald-Sun of Durham: "Everybody wants to say that Mike Nifong is some kind of a rogue prosecutor, but in fact, what he did is not that different from what other prosecutors do on a regular basis in cases out of the spotlight.”

If you doubt that, take a look at news reports linked to Police/Prosecutor Misconduct. And why do so many prosecutors kick justice to the curb in pursuit of convictions and publicity? With a handful of rare exceptions, they are rewarded with higher offices. They warm the bench as judges. They get elected to state and federal offices. And while they almost certainly recognize the same unethical and illegal behaviors among the prosecutors who follow them, they aren’t going to throw any stones. Instead, they condone and perpetuate it.

Mike Nifong may have done justice a favor after all, however. He raised the curtain and showed us what goes on in too many prosecutors’ offices across the country. Now everyone knows. And as Professor Coleman said, “What's important now is that they not tolerate it."

Guest Shot: Weeding Out the Innocents

(This Op Ed article originally appeared in the June 11, 2007 edition of the Los Angeles Times.

Weeding out the innocents
Just because a vast majority of prisoners were rightly convicted doesn't mean we shouldn't look for those who weren't.

By Samuel R. Gross
June 11, 2007

THE FIRST innocent American defendant to be exonerated by DNA evidence was Gary Dotson of Chicago. Before his conviction was overturned on Aug. 14, 1989, he'd spent 10 years in prison and on parole. This year, on April 23, Jerry Miller obtained the 200th DNA exoneration, also in Chicago. He had served 25 years for a rape he did not commit.

Two hundred innocent prisoners exonerated by DNA — plus more than 200 other exonerations that did not involve DNA. That sounds like a lot. But over 18 years in a criminal justice system that sends hundreds of thousands to prison each year? How frequent are wrongful convictions?

The truth is, we don't know. But that hasn't stopped prominent members of the legal profession from staking out a position.

More than a year ago, prominent Oregon prosecutor Joshua Marquis, commenting on my research on exonerations, wrote in the New York Times that the rate of erroneous convictions could be no higher than .027%. Last June, Justice Antonin Scalia endorsed that calculation in a concurring opinion in a Supreme Court case. This April, after the 200th exoneration, Colorado District Judge Morris B. Hoffman wrote in the Wall Street Journal that false convictions occur in fewer than .065% of criminal cases. Whatever the number, the message is the same: Not to worry, we get it right more than 99.9% of the time.

These reassuring words are nonsense.

Here's how Hoffman and Marquis arrive at their numbers. Start with the number of known, proven exonerations (for Hoffman, the 200 DNA exonerations so far), then multiply that by 10 "to be safe" (Marquis' formula). Take that product, divide it by an estimate of the millions of all criminal convictions over time, and you end up with something less than one-tenth of 1%.

This makes no sense. Imagine that a car company gets reports that 65 of its 2007 sedans have faulty steering columns, which sometimes lock up. What if the company said: "That's no big deal. We have 10 million cars on the road, so that's less than one-thousandth of 1%."

But that's ridiculous. The total number of defects could be 10 or 100 or 1,000 or 10,000 times greater than the first batch that came to light. Unless we investigate systematically, we just don't know — not for steering columns and not for criminal convictions.

Further, the car company has divided by the number of all cars in service, when it should use the number of 2007 sedans only. Marquis and Hoffman make this mistake too. Hoffman, for example, divides the 200 DNA exonerations to date by his estimate of all criminal convictions — including check kiting, tax evasion and car theft. But DNA testing requires biological evidence; it has only been useful in a fraction of rape convictions and a scattering of murder cases (if the killer bled). Rape and murder account for fewer than 2% of felony convictions and a much smaller percentage of all convictions.

As it happens, we're just beginning to learn something real about the rate of false convictions. The Virginia Department of Forensic Science recently found a large group of closed rape files with untested DNA, which will make possible the first systematic study of false convictions. So far, tests on a small preliminary sample are troubling: two previously unknown wrongful convictions out of 29, or an error rate of 7%.

We can also learn from death sentences, which are reviewed much more carefully than other criminal convictions, so more errors are caught. Of the 3,795 defendants sentenced to death from 1973 through 1989, 86 were freed because of DNA or other new evidence of innocence. That's 2.3%. Of course, some of those freed may be guilty, while others still on death row are no doubt innocent. So last year, Michael Risinger, a professor at Seton Hall Law School, did a study of death row DNA exonerations only. His results? Among defendants sentenced to death between 1982 and 1989 for murders involving rape, at least 3.3% were innocent.

The good news is that the great majority of convicted defendants in the United States are guilty; the bad news is that a substantial number are not. Is an error rate of 2% or 3% or 5% high or low? That depends on your point of view and your purpose.

If 1% of commercial airliners crashed on takeoff, we'd shut down every airline in the country. That would be nearly 300 crashes a day. If as few as 1% of criminal convictions are erroneous, right now there are more than 20,000 innocent defendants behind bars.

Correcting false convictions is much harder than recalling automobiles, but we have to try. We'll never save the innocent defendants who are already in prison — or keep others from suffering their fate — if we just wish the problem away. --

SAMUEL R. GROSS is a law professor at the University of Michigan.